During a legal seminar I attended last week, an Indiana Occupational Safety and Hazards Agency (“IOSHA”) representative presented information covering work place injuries. The representative explained that since March 2015, new reporting and investigation regulations require IOSHA to investigate amputation injuries across the state. The presenter was clearly surprised how many work place amputations occur every day. This safety initiative is designed to investigate problems, enforce safety codes and prevent ongoing hazards for Indiana workers.
The Goodin Abernathy LLP lawyers are not surprised by these findings because we frequently help clients who have suffered amputated fingers, hands and arms. Many of our clients need help understanding what Indiana worker’s compensation benefits are available for their damages. These benefits include lost wages from time off work (TTD or PTD), payment of medical bills, physical therapy and psychological counseling, or payments for their impairment due to permanent physical disfigurement (PPI).
The Indiana Worker’s Compensation Board uses a table to calculate the money owed for amputation PPI ratings. https://www.in.gov/wcb/index.htm What injured workers need to know is that employers and their insurance companies are obligated to address impairment ratings – but many times the workers are not told of these benefits. Also, the calculations and settlement offers insurance companies make do not always match the reasonable or fair value of a PPI rating: especially in amputation cases.
GA’s Indianapolis attorneys understand the medical and therapy plans needed to fully address amputation recoveries. We are also experienced in evaluating the correct PPI calculations for claiming impairment benefits with all types of amputations. Indiana has recognized the pervasive problems of amputation injuries. This article describes the problems and also discusses a case where a worker suffered two amputations, two different times on the same machine! (click here)
If you need help understanding which benefits are available for your recovery from an amputation, call us. If you need help calculating the extent of your amputation injury and the its recognized impairment value, contact us and put our experience to work. Goodin Abernathy LLP will uses its experience, resources (including expert medical review) and legal background to represent you. Don’t get cut short twice with your amputation – call us for legal help.
Effective April 1, 2020 and continuing through December 31, 2020, the Families First Coronavirus Response Act (“FFCRA”) will require certain employers to provide their employees with paid sick leave and/or expanded Family Medical Leave for reasons related to COVID-19.
There are essentially 2 parts to the Act. Part 1 is an emergency expansion of the Family Medical Leave Act (“FMLA”). Part 2 requires certain employers to provide Federal Paid Sick Leave.
The Act applies to all employers with fewer than 500 employees. This includes both full and part-time employees. This number also includes dual employees, such as those provided by professional employment organizations (PEO’s) also known as staffing agencies. There may be exceptions for “extreme financial hardship,” but the Department of Labor has not yet produced any guidance for what that means.
The Act also provides for a “Distressed Small Business Exception,” which only applies to employers with 50 or less employees. Again, because this law is so new, there is little to no guidance from the Department of Labor as to who will qualify for this exception.
So, what does the FFCRA require employers to do?
Generally, all employers must provide their qualifying employees with:
Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined either (1) pursuant to Federal, State, or local government order or advice of a health care provider, and/or (2) is experiencing COVID-19 symptoms and seeking a medical diagnosis; AND up to 10 additional weeks of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of COVID illness or a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.
FAQ’s about the FFCRA:
How does an employee qualify for these FFCRA benefits?
Some examples include:
Being diagnosed with the COVID-19 virus.
Having symptoms of the virus.
Being required to be in self-quarantine.
Being ordered by your doctor to self-quarantine.
Having to care for a spouse or child who is infected with the virus.
Another common example will be caring for a child whose school or daycare has been closed because of COVID-19 – Or having substantially similar condition based on guidance from the Secretary of Health and Human Services.
Can both parents claim paid leave under the FFCRA?
There is nothing in the law that suggests that both parents would not be entitled to paid leave if they otherwise qualify for the benefits.
Can my employer require me to use paid sick leave before paying benefits under the FFCRA?
It depends. The expanded benefits to FMLA do not kick in for the first 10 days, therefore you may be required to use unpaid sick leave to cover that gap. The mandatory sick leave would not require you to use accrued unpaid leave.
How much pay am I entitled to receive?
It depends on whether you are seeking the expanded benefits of the FMLA, or the mandatory paid sick leave. Normally, a qualifying employee is entitled to 12 weeks of unpaid leave under the FMLA. The new law expands that to include paid leave of two-thirds of base pay based on number of hours normally worked. The maximum is $200 per day, or $10,000 per employee, based on 12 weeks of eligibility.
The mandatory paid sick leave under the FFCRA is capped at $511 per day, with a total benefit of $5,110 per employee.
How are employers expected to pay for these FFCRA benefits?
The government has rolled out several plans to help small business employers pay for these new benefits. One option is a dollar for dollar tax credit for payments made. A second option is a small business loan through the Small Business Administration (SBA) to cover payroll costs. If certain conditions are met, and all of your employees remain on the payroll for a specified period, these loans will be forgiven (they don’t have to be paid back). Lastly, some employers may have business interruption insurance that could be applicable. Definitely check your policy to determine coverage.
Can my employer disclose my diagnosis of COVID-19?
Yes, under certain circumstances, there are exceptions to HIPPAA’s confidentiality requirements. For example, an employer can disclose such a diagnosis for the safety of your co-workers.
What if I contracted COVID-19 at work, will workers’ compensation cover my treatment?
There is much we don’t know about how the new laws will be interpreted, and whether a diagnosis of COVID-19 could be considered an occupational disease. Certainly, for those on the front lines fighting this disease, for instance health care workers, an argument could be made that it is a risk of the job.
If I have to provide these FFCRA benefits, my business will be forced to shut down. Are there any exceptions?
Yes. Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.
If I have to take leave, can I get my job back when I return?
Yes. The new law requires employers with 25 or more employees to reinstatement after 12 weeks. If your employer has less than 25 employees they must “make reasonable effort” to reinstate an employee who has taken leave under the Act.
In these uncertain times, it is always best to know your rights. If you have questions about Coronavirus/COVID-19, and your entitlement to benefits under the new laws, please contact us for a free legal consultation. We are not currently taking in-person interviews in our efforts to avoid unnecessary spread of the virus, but we are always available for telephonic consultations.
An injured worker potentially has two legal claims to recover damages. First, they have an Indiana Worker’s Compensation claim against their employer. Second, they may be able to collect from a responsible third-party.
Each state has its own work injury laws. Indiana’s system starts with making a claim through a government agency – the Worker’s Compensation Board. This agency operates very similar to a court. Papers are filed, attorneys are used and hearing members make decisions like judges. This link takes you to the main page for the Indiana Worker’s Compensation Board website. https://www.in.gov/wcb/ Go to the bottom of the page and look for a translation button. You can change it from English to Spanish, if necessary.
Another easy way to learn about Indiana’s worker’s compensation laws is to watch my YouTube videos. Search for Legalmente Hablando Indy or Goodin Abernathy LLP on the YouTube website. Here is an introduction video Jim Browne recorded that covers worker’s compensation. https://www.youtube.com/watch?v=uHV1TB21TZ4 You will learn that work injury claims allow employees to claim these benefits: medical costs, lost wages and a permanent partial impairment rating. The medical costs include charges for an ambulance, hospital, doctors, nurses, physical therapy, medicine, x-rays or MRI’s.
If a treating doctor orders an employee not to work for medical reasons related to the injury, the employer must pay for lost wages or salary. This is called Total Temporary Disability (“TTD”). The worker is paid 66.66% of her regular pay. But tax is not applied to the money. So if the worker usually earns $100.00 per week, then the employer owes $66.66 for each week the employee is unable to work.
Finally, if the injury is serious, the worker may claim a Permanent Partial Impairment. This idea is to compensate workers for physical and work problems they will suffer in the future. The State of Indiana created a list of dollar values for these injuries that limit a worker’s recovery. I can usually help improve the financial recovery for my clients.
Indiana requires employers to carry worker’s compensation insurance. If a worker is injured on the job, the employer’s insurance will cover these costs. If the employer does not have insurance, the law allows the injured worker to make claims against the contractor who hired the employer for the job. Frequently I help clients step up the ladder and find insurance to collect from.
If a person or company, other than the employer or a co-worker, causes a worker injury, then we can make a “third-party” claim for negligence. Negligence law is different from the worker’s compensation claim. Those cases are opened in a typical court with judges. A big difference between the two cases involves damages for pain and suffering. An injured worker can claim damage for pain and suffering in a negligence claim – but not in an Indiana Worker’s Compensation claim.
We are experienced handling various types of third-party negligence claims. Sometimes they are against construction companies where the general contractor has a legal, contractual duty to provide safety for workers on the job. We have handled claims where workers for other companies cause an accident. For instance, an electrician was on a scissor lift. A plumber drove a fork lift over the lift’s electric cord, pulled the it over and caused our client to fall 20 feet. Or, we have clients who were driving a vehicle for their job when another car caused them a wreck.
Remember, insurance companies are in business to make money- not pay it out. They are professional and know the law. That is why you should call me for legal advice. I give free consultations to review these cases with clients. I explain the law for your specific evidence and describe how I charge for my service. You will meet with me in person, speak Spanish and review the case. My staff speaks Spanish and knows about these cases Don’t wait – contact us now!
If you or someone you know was injured while working at a construction site, there are typically two areas of law that we use to make your claim.
The FIRST is a worker’s compensation claim. This area of law is for employee claims against their own employers. The law requires the employer to offer these basic benefits:
1) Pay all medical treatment- including the ambulance, hospitals, doctors, physical therapy, medicine and x-rays.
2) Lost Income- if you miss more than 7 days of work in a row, the employer must pay you 66% of your average income. This is called TTD or Temporary Total Disability. These payments can extend if you return to restricted or less hours.
3) PPI- Permanent Partial Impairment- When the doctor says you are finished treating, she or he needs to write a report explaining if your injury caused a long term impairment that affects your ability to work.
The SECOND type of legal claim is for NEGLIGENCE against the general construction company. Unfortunately, a lot of times this legal claim is overlooked and the worker misses out on additional recovery.
So don’t let that happen to you. Share your information and we’ll investigate whether we can help you.
For instance, written construction contracts or legal relationships between the construction firms can require the general contractor to protect your safety.
A negligence claim against the general contractor can help you recover more than the limited benefits allowed by a work comp claim. This can be a VERY important part of your financial recovery.
Take a look at more information about these claims on our website OR just call me, Jim Browne at Goodin Abernathy.
For something really easy, just click the “Do I have a case” button and we’ll look at the specifics of your case.
Goodin Abernathy wants to help – and we’ll put our experience to work for you.
Video Surveillance & Indiana Worker’s Compensation Cases
What does the law say about video surveillance in Indiana Worker’s Compensation cases? Glad you asked – because the Goodin Abernathy LLP law firm handles those claims.
This video of a man, who seemingly fakes a fall and injury, is making the internet rounds. Click here to watch.
The video shows a man create his own water hazard and intentionally fall in it. When it comes to liability, Indiana’s worker’s compensation law favors workers – but this claim would probably “fall flat” in court.
So let’s look at two main points raised by the video:
1) How is liability handled in an Indiana Worker’s Compensation (“work comp”) claim?
2) Can the employer use video evidence?
A good part about Indiana’s work comp law is that an employer must accept a claim for accident and injury if an employee is hurt on the job. The employer cannot avoid responsibility and argue the employee is at fault for doing something wrong to cause the accident. This is a big difference from Indiana’s negligence law, where private individuals or businesses are suing each other. In a negligence case, a defendant can argue the plaintiff was more liable or “at fault” for causing the accident. If they prove it, the plaintiff can lose their whole case.
But not in an Indiana Worker’s Compensation case. As long as the accident occurred at work or in the scope of the employment, the employer must cover the claim.
There are a few exceptions. If the worker: intentionally caused the injury (watch that video again); was injured doing something criminal; or was under the influence of alcohol, drugs or intoxicants – then an employer can try to deny the claim.
On numerous occasions, we have represented injured clients against their employer’s intoxication defense. Usually these situations involve chemical test results showing traces of medicine, drugs or alcohol in the employee’s system. The employer must show, at the time of the accident, the intoxicants impaired the worker’s physical and mental abilities. That’s when you turn to the actual levels of intoxicants in the blood stream.
What if the worker consumed the substance days before the incident. While we do not condone it, what if the worker smoked marijuana the weekend before their accident? Calculations can be made to determine whether the substance actually affected the employee when the accident occurred. In some very serious injuries, that we won, we’ve proven our clients were not under the influence of drugs – even though traces showed up in their system.
Finally, YES, videos can be used in court. One reason could be for liability issues like the video that started this blog. Another reason could be to question our client’s credibility in a case where they claim permanent physical disability prevents them from working. An employer or its insurance company may have surveillance done, where a private investigator secretly follows the worker around, taking video of regular activities like driving, carrying groceries, fishing or cutting their lawn.
The Goodin Abernathy attorneys are very familiar with handling this evidence and give clients advice on how to conduct themselves, what to watch for and how to counter punch the private investigator’s assertions.
Indiana’s work comp law is well intentioned. It is designed with the thought an injured worker can represent herself in court without an attorney. But remember this: employers use sophisticated, trained insurance companies to defend the claims. Those insurance companies make money collecting premiums – not paying money towards injury claims. That’s why you should contact Goodin Abernathy LLP for advice on how to handle your Indiana Worker’s Compensation claim.
Knowing how to properly use and maintain ladders while working is life-saving knowledge to have for safety protection against falls at work – and at home. Daily, within the United States, at least two thousand citizens are critically hurt during the use of a ladder. If you add in the occasional slip and fall occurrence, that number goes up considerably. For a hundred of them, long-term disability or possibly even permanent disability can be the end result due to their injuries.
Fall Protection and Training
Fall protection and training will consistently play key roles in keeping your employees safe. Worker’s compensation insurance premiums increase as more employees file claims. Falls happen every single day and at least one ladder accident causes a person’s death. At that point, you must ask yourself, “What is the cost to someone when told they are permanently disabled, can never work again or worse.” Loss of income alone can be devastating to a family. Effective January 2017, OSHA established updated employer requirements connected to the performance, design, and utilization of fall protection structures. The update raises consistency between construction standards and the general industry.
The majority of industrial companies’ biggest expenses due to employee injuries deal with ladder-related falls. The financial weight can be astounding. The dreadful human cost is even more shocking. With effort, fall protection and prevention, when it comes to a slip and fall, ladders or aerial access equipment, will most likely be a huge focus the future. Think of this scenario. If you were on the cliff of a mountain, would you rather build a fence around the top of that cliff for safety? On the other hand, would you prefer to station an ambulance at the base of the mountain just in case?
All safety equipment is designed with its potential dangers in mind. During the design process the attempt to eliminate all of those red flags. The designers outline everything in their hierarchy of controls. In layman’s terms, they engineer out the danger. If you do not see a path to engineer the danger out, safeguard against the danger. If guarding against it is not possible, then you must properly warn, supply personal protection equipment and adequately train people on its use and dangers.
Technology of Ladders
Many things over the years have improved thanks to technology. The time has long past to improve the safety of ladders. The primary design of conventional ladders has been untouched for centuries. Therefore, it is no coincidence that the rate of ladder injuries has grown in the past decade. Sadly, a team somewhere reviewed the design and decided that the original blueprint of the ladder could not be enhanced. This is why you will see many warning labels on ladders. These visible warnings force safety professionals to schedule a myriad of training meetings. These meetings teach employees to not do things on a ladder that everyone knows they are going to do anyway.
Stepladders actually present their set of special problems. Falls still happen due to over-reaching. They also have compliance rules pertaining to sustaining three points of contact while in use. You should constantly maintain three points of contact when you ascend and descend on a ladder. For example, there should be a combination of two feet and one hand or two hands and one foot at all times. Now, what should you do once you are no longer in climb mode and begin working? Technically, you are still supposed to have three contact points. Most personnel feel it is difficult to work with just one hand. Tying off above certain height levels is also something recommended. Lastly, what do you do when it comes to working on surfaces that are uneven or over stairs? The debate continues.
Aerial safety cages are another means of reaching heights. They are not actually considered ladders and are not scaffolds or power lifts either. Aerial safety cages permit the operator to perform their work in a completely enclosed space. The unit is a height-adjustable platform that is in compliance with all tie off and guardrail rules. This newer type of access equipment is more adaptable than traditional ladders or powered lifts. Aerial safety cages are capable of adjusting for working on stairs or uneven surfaces. They cages are approved for use surrounding live electrical circuits because they are assembled with non-conductive fiberglass rails.
Protection and prevention against a fall on the job begins with understanding how individuals use ladders. Just as important, there needs to be continued concentration on how people injure themselves using ladders. With continued research in this area, there can be real opportunities to designing new and safer products for climbing. If you are hurt or need worker’s compensation answers, Goodin Abernathy LLP can assist you. Call us for a free consultation if you have been injured on the job.